Marcus Brown v. Roy Cooper , 549 F. App'x 183 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7721
MARCUS RANDALL BROWN,
Petitioner - Appellant,
v.
ROY COOPER,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Robert J. Conrad,
Jr., District Judge. (5:13-cv-00074-RJC)
Submitted: December 19, 2013 Decided: December 24, 2013
Before SHEDD, DAVIS, and FLOYD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Marcus Randall Brown, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus Randall Brown filed a petition under 28 U.S.C.
§ 1651(a) (2006) for a writ of error coram nobis and a motion to
appoint counsel in the United States District Court for the
Eastern District of North Carolina. In the petition, Brown
sought to set aside his 1996 North Carolina state convictions
for possession of implements of housebreaking and presence in a
building with intent to commit a felony. The Eastern District
of North Carolina transferred the petition to the United States
District Court for the Western District of North Carolina, the
district court below.
On July 10, 2013, the district court entered an order
denying the motion to appoint counsel, denying the petition for
a writ of error coram nobis on the basis that federal district
courts lack the authority to issue writs of error coram nobis to
set aside state convictions, and closing the case. Within the
twenty-eight-day period prescribed by Fed. R. Civ. P. 59(e) for
filing motions to alter or amend judgment, Brown moved the
district court to reconsider its conclusion in the July 10 order
regarding its authority to grant coram nobis relief or,
alternatively, to construe his challenges to the 1996
convictions as being presented through a petition for a writ of
habeas corpus under 28 U.S.C. § 2254 (2006). The district court
denied the motion in part and granted the motion in part—denying
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reconsideration of the July 10 order but construing Brown’s
coram nobis claims as arising under 28 U.S.C. § 2254—and denied
relief on the § 2254 petition by order entered on
October 4, 2013. Brown timely appealed the October 4 order.
On appeal, we confine our review to the issues raised
in the Appellant’s brief. See 4th Cir. R. 34(b). Because
Brown’s informal brief does not challenge the July 10 order or
the district court’s ruling in the October 4 order denying
reconsideration, Brown has forfeited appellate review of that
order and ruling. We therefore grant leave to proceed in forma
pauperis and affirm that order and ruling.
With respect to the ruling in the October 4 order
denying § 2254 relief, that ruling is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1)(A) (2006). A certificate of
appealability will not issue absent “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When the district court denies relief on the merits, a prisoner
satisfies this standard by demonstrating that reasonable jurists
would find that the district court’s assessment of the
constitutional claims is debatable or wrong. Slack v. McDaniel,
529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003). When the district court denies relief on
procedural grounds, the prisoner must demonstrate both that the
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dispositive procedural ruling is debatable, and that the
petition states a debatable claim of the denial of a
constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Brown has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal of
that portion of the October 4 order denying § 2254 relief.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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